Part 2 – Organisation
It usually takes more than three weeks to
prepare a good impromptu speech.
- Mark Twain
Willem H Gravett,
New York State Bar
Use the evidence – don’t just portive of the theory of the case. of the case. Your theory will seldom depend
upon which witness provides a particular
display it Avoid witness summaries. It remains
a mystery why many trial lawyers think that piece of information. Rather, the theory will
always depend upon how the various facts
he goal is to organise your they can help the fact-finder understand the
case by naming the witnesses and outlining fit together.
opening statement so that Be wary of chronology. Chronology
the expected testimony of each (the so-called
it has maximum persuasive ‘witness-by-witness’ approach). is an obvious way to organise an opening
impact. There is a world of The very purpose of the opening state- statement. After all, events in the real world
ment is to overcome the disjointed fashion occur in chronological order.
difference between using the
in which the witnesses will produce evidence However, simply because events occurred
evidence, and merely displaying in a certain order is not a sufficient reason
at trial. Witness-by-witness rendition of the
it. facts is not likely to produce a coherent story. to present them that way to a fact-finder.
Unprepared and disorganised trial lawyers By lashing you to the mast of events as they
The Court will hear a number of witnesses
are attracted by the allure of some seem- happened, chronology may very well prevent
testify in this case.
ingly ‘natural’ methods of organising their you from organising the facts in their most
The plaintiff will testify that . . .
opening statement, such as chronology or persuasive order.
Then John Dunn, a firefighter will tell you
witness summaries. They allow the accident For example, the following are the first
that . . . three paragraphs from the lead article of the
of witness observation or the serendipitous
occurrence of events to replace dynamic You will also hear from Amy Lipton. She New York Daily Tribune of April 15, 1865:
organisation and attention to the theory of will testify that . . . President Lincoln and his wife,
the case. This approach often amounts to Interesting? No. Persuasive? Absolutely together with other friends, this evening
nothing more than displaying the evidence. not. The opening statement quickly becomes visited Ford’s Theatre, for the purpose
Effective trial lawyers, on the other hand, boring and difficult to follow. of witnessing the performance of the
use the evidence in opening statement. An even greater problem with the wit- ‘American Cousin.’
Using the evidence involves the purposeful ness-by-witness approach is that it obstructs It was announced in the papers that
ordering of the facts in a manner most sup- the trial lawyer’s ability to develop a theory General Grant would also be present, but
advocate August 2009 45
he took the late train for New Jersey. more persuasive through the addition of sup- The parties and witnesses. Introduce
The theater was densely crowded, and porting details: the essential people, both the parties and key
everybody seemed delighted with the • The fire engine was responding to a call; witnesses. Describe your witnesses in such a
scene. During the third act, and while •There is a departmental policy to use the way that will make their story understand-
there was a temporary pause for one of siren whenever responding to a call; able and their testimony credible.
the actors to enter, a sharp report of a • The driver of the fire engine was an You should remind the fact-finder that
pistol was heard, which merely attracted the case involves people, and not merely
experienced firefighter, well aware of
attention, but suggested nothing serious, abstract legal problems. The more your client
until a man rushed to the front of the and critical witnesses are humanised, the
• Other motorists stopped their cars.
President’s box, waiving a long dagger more likely it will be that the fact-finder will
in his hand, and exclaiming ‘Sic semper The details have little meaning when
offered on their own. They become impor- perceive them as believable. For example:
tyrannis!’ and immediately leaped from
tant only in light of the pivotal issue on This is John Smith. John is an accoun-
the box, which was on the second tier, to
which they are offered. tant. He had worked as an accountant at
the stage beneath, and ran across to the
2 Weave in the witnesses. While the Acme Corporation for 15 years, supporting
opposite side, making his escape amid
the bewilderment of the audience, from witness-by-witness approach will not result his wife and three children. John had risen
the rear of the theater, and mounting a in a persuasive opening statement, this does through the ranks at Acme to become Chief
horse, fled. The screams of Mrs. Lincoln not mean that you should not mention Accountant. He has lived in our community
first disclosed the fact to the audience individual witnesses in the course of your all his life.
that the President had been shot. opening. Actually, it is important to let the Before April 25th of last year, John Smith
You did not have to be a seasoned jour- fact-finder know the source of a specific fact. was a completely healthy man. He was
nalist to have realised at the time that the The key is to weave the information about physically active. He did all the work around
assassination of President Lincoln would be a the witness into the narrative so that the wit- the house – he even built an addition a few
pivotal moment in American history. Surely, ness references arise in the context of your years ago when his little girl was born. He
there could be no more captivating fact with theory of the case. enjoyed playing tennis, hiking and camping
which to lead the story: Take, for example, our fire engine with his family and friends. He never had any
As Mrs. Lincoln’s screams rang out, example. The plaintiff says there was a problems with his back or legs.
everyone realised that the President siren; the defendant says there was not. The Action and key events. It is critical to
had been shot! Moments before, a man plaintiff can bolster her position by weaving use the opening statement to begin to paint
rushed to the front of the President’s Box in witness information when her opening
a picture of the events in a way that helps
in Ford’s Theatre . . . statement narrative reaches the siren issue:
the fact-finder to visualise the case from your
As you can see from this example, a Just as she approached the intersec- client’s perspective.
strict chronological organisation may clutter tion, Janet [the plaintiff] saw and heard an
To do this effectively, you must first have
your story with useless and confusing detail. approaching fire engine. It was sounding its
created your own mental image consistent
Do not make the fact-finder wade through siren and flashing its lights. We know that
with the testimony to be given later by your
inconsequential details before you get to the the siren was operating because Lieutenant
own witnesses. The importance of prepara-
point. Jim Dunn, the driver of the fire engine, will
tion cannot be overemphasised. You must
Using details persuasively. Using - as testify that he always sounds the siren when
know precisely how, and in what terms, your
opposed to merely displaying - the evidence he is answering a call. That is fire department
witnesses will relate each incident.
in your opening statement depends upon the policy and Lieutenant Dunn is a decorated
firefighter who has been with the depart- In describing events, nouns and verbs
persuasive arrangement of major proposi-
ment for over ten years. Lieutenant Dunn will are much more helpful than adjectives and
tions and supporting detail.
testify that he is certain that he was doing adverbs. This may seem counter-intuitive,
1 Big ideas, then details. It is usually most
his official duty – using all audio and visual since we commonly think of modifiers as
effective to organise your opening statement
alarms on the day of the crash. adding descriptive depth. Consider, however,
as a series of big ideas, each of which is
The information about Lieutenant Dunn which of the following accounts is more
immediately supported by persuasive sup-
neither stands alone as an isolated descrip- evocative of the crime:
tion of the witness, nor does it interfere with Example 1 – Maximum use of adverbs
The fact-finder will resolve the case on the
the flow of the narrative. Rather, it adds and adjectives:
basis of certain pivotal issues. Marshall details
support to the plaintiff’s theory at the precise It was a heinous, horrible crime. The
to make your version of these pivotal issues
moment when the fact-finder will most read- defendant’s actions were awful and inhu-
ily appreciate such support. man. He brutally grabbed at the victim’s
Assume, for the sake if illustration, that
gold chain, fiercely pulling it away. He left an
a major issue in an automobile collision case The operative facts
is whether a fire engine sounded its siren ugly bruise on the victim’s neck. Unsatisfied
immediately before the accident. If the fact- The most important part of any opening with the proceeds of the armed robbery, the
finder determines there was a siren, a verdict statement is its treatment of the operative defendant then coldly and wantonly stabbed
for the plaintiff is more likely; if there was facts. Facts win lawsuits. Everything else the victim twice, leaving his jacket lying in a
no siren, the defendant has a better chance. - organisation, presentation, theme develop- bloody heap. It was indeed a cowardly act,
Thus, the siren is a pivotal issue in the trial. ment - is only an aid in communicating the taken against a defenseless victim.
The plaintiff’s position could be made facts of the case. Example 2 – Virtually no modifiers:
46 advocate August 2009
The defendant placed the knife against Street has no parking lanes. It too is lined cannot be done if you merely explain why
the victim’s body. Without waiting, he with commercial buildings. Consequently, as your client is right; this can only be done
grabbed the gold chain from the victim’s you drive down Main Street you cannot see if you explain the righteousness of your
neck and twisted it until it snapped, leaving the traffic coming down Clark Street until interpretation of the contract. Why were the
bruises on the victim’s neck that did not heal you are literally in the intersection itself. particular terms so important? Why was your
for over a week. Although he had already Setting the scene involves describing a client’s reliance on the other party’s word
taken what he wanted, he pushed the knife potentially unlimited number of details. The justified?
into the victim’s shoulder, turning as he key is to dwell only on those details that are
Motives and motivations. As we have
pushed, and watched the blood well to the significant to your case while avoiding those
seen, stories are more persuasive when they
surface. Then he stabbed the victim again, that are merely clutter.
are told about people who have reasons for
until the blood soaked the jacket all the way It is often difficult to visualise references the way they act. An opening statement
through. to compass directions, degrees, or angles in
should always attempt to stress the motiva-
Example 2 is more vivid, because it the abstract. Therefore, in setting the scene,
tions for the parties’ actions.
describes the action as it happened. By con- a diagram, enlarged photograph or other
trast, Example 1 actually obscures the action The activity that you describe will be that
exhibit can be enormously helpful to aid the
by substituting value-laden modifiers for an fact-finder. much more believable if, at the same time,
account of the events themselves. you are also able to explain why the people
In cases where the date and precise time
involved acted as they did.
Modifiers frequently stand for judgments of an event are important, or the weather
rather than for descriptions. Words like and lighting conditions are significant, However, the opening statement is not
‘heinous,’ ‘brutal,’ and ‘awful,’ or ‘lovely,’ describe them in detail: the time to speculate about a person’s
‘wonderful,’ and ‘grand’ may convey the The robbery happened at 11:30 at night secret motives. The opening statement must
trial lawyer’s opinion about something, but on August 31st. Although it was nighttime, develop motive in the same way that it treats
they do no depict a vision of the events the intersection was well lit. There is a street- everything else - through the preview of
themselves. light directly over the spot where Mr. Jones evidentiary facts.
An effective description of the actions was beaten, kicked in the head, and then
and key events includes statements that are robbed. There are other streetlights further End with a bang!
objectively accurate, complete, and believ- down the street in each direction, on both
The ending – the last minute of your
able. A description that is too abstract, too sides of the street. The storefronts that line
opening statement – must accomplish several
subjectively biased, or incomplete will not be the streets provide even more lighting.
persuasive. Transactions and agreements. Most
• Repeat the themes one last time.
The physical scene. The physical details commercial cases involve written and oral
of a particular setting may affect things such communications far more than they do physi- • Summarise the basis for liability or non-
as probability, credibility, and visibility. It is cal occurrences. These ‘non-physical’ events liability, guilt or innocence, by tying the
important to use your opening statement to can be more difficult to describe during key facts to the key themes.
set the scene for major events. opening statement, since there is little or no • Tell the fact-finder what you want her to
Describe the scene so that the fact-finder activity to depict. do through the verdict.
can visualise it. The objective is to develop Nonetheless, if the case turns on the • Motivate the fact-finder to see that an
verbal pictures so that when you close your interpretation of a contract or the mean- injustice is righted and fairness is served.
eyes and listen to the description, you should ing of a series of telephone calls, you must
actually be able to form a mental picture of search for a way to bring the transaction to
We are asking this Court to tell the
the scene described. life.
defendant that two years of denial is
Clarity is critical. If the fact-finder cannot The surest way not to bring a business
enough; that two years of failing to take
visualise what you are describing, the rest transaction to life is to parse it out in minute
responsibility for what their negligence
of your opening statement will not be as chronological detail.
did to Karen Adams is enough. At the
persuasive. Give one fact at a time, allowing It is generally much better to start at the
end of this trial, we will ask this Court
the fact-finder to absorb it and to add it to end. Explain the gist of the agreement, and
to find that the defendant’s negligence
the developing mental picture in her mind. then go back to fill in only those details that
are necessary to support your interpretation. caused Karen’s injuries and damages. We
will ask this Court to find that plaintiff
The collision occurred at the intersection The effective trial lawyer knows, however,
has proven damages in the amount of
of Main Street and Clark Street. Picture a car that it is not enough to simply recite the
R[_____]. We will ask this Court to do
traveling south on Main Street towards Clark terms of the agreement, and then to point
out that it was either kept or broken. While what only it has the power to do: return
Street. Main Street is a two-lane street. There
such an approach may, in the driest sense, to Karen some semblance of all that the
are parking lanes on both sides that are
filled. On both sides of Main Street near the convey your theory, it will not add anything defendant took away.
intersection with Clark Street there are com- to the moral weight of your case. In the last article in this series, we will
mercial buildings approximately three stories Recall that your trial theme is intended look at some strategic considerations and
high. Clark Street intersects at right angles to provide the fact-finder with a reason for discuss effective delivery of the opening
with Main Street. It is a four-lane street. Clark wanting to rule in your client’s favor. This statement.
advocate August 2009 47